Sec. 175. THOUGH governments
can originally have no other rise than that before mentioned, nor polities be
founded on any thing but the consent of the people; yet such have been the
disorders ambition has filled the world with, that in the noise of war, which
makes so great a part of the history of mankind, this consent is little taken
notice of: and therefore many have mistaken the force of arms for the consent
of the people, and reckon conquest as one of the originals of government. But
conquest is as far from setting up any government, as demolishing an house is
from building a new one in the place. Indeed, it often makes way for a new
frame of a common-wealth, by destroying the former; but, without the consent of
the people, can never erect a new one.

Sec. 176. That the aggressor, who puts himself into the state of war with
another, and unjustly invades another man's right, can, by such an unjust war,
never come to have a right over the conquered, will be easily agreed by all
men, who will not think, that robbers and pyrates have a right of empire over
whomsoever they have force enough to master; or that men are bound by promises,
which unlawful force extorts from them. Should a robber break into my house,
and with a dagger at my throat make me seal deeds to convey my estate to him,
would this give him any title? Just such a title, by his sword, has an unjust
conqueror, who forces me into submission. The injury and the crime is equal,
whether committed by the wearer of a crown, or some petty villain. The title of
the offender, and the number of his followers, make no difference in the
offence, unless it be to aggravate it. The only difference is, great robbers
punish little ones, to keep them in their obedience; but the great ones are
rewarded with laurels and triumphs, because they are too big for the weak hands
of justice in this world, and have the power in their own possession, which
should punish offenders. What is my remedy against a robber, that so broke into
my house? Appeal to the law for justice. But perhaps justice is denied, or I am
crippled and cannot stir, robbed and have not the means to do it. If God has
taken away all means of seeking remedy, there is nothing left but patience. But
my son, when able, may seek the relief of the law, which I am denied: he or his
son may renew his appeal, till he recover his right. But the conquered, or
their children, have no court, no arbitrator on earth to appeal to. Then they
may appeal, as lephtha did, to heaven, and repeat their appeal till they have
recovered the native right of their ancestors, which was, to have such a
legislative over them, as the majority should approve, and freely acquiesce in.
If it be objected, This would cause endless trouble; I answer, no more than
justice does, where she lies open to all that appeal to her. He that troubles
his neighbour without a cause, is punished for it by the justice of the court
he appeals to: and he that appeals to heaven must be sure he has right on his
side; and a right too that is worth the trouble and cost of the appeal, as he
will answer at a tribunal that cannot be deceived, and will be sure to
retribute to every one according to the mischiefs he hath created to his fellow
subjects; that is, any part of mankind: from whence it is plain, that he that
conquers in an unjust war can thereby have no title to the subjection and
obedience of the conquered.

Sec. 177. But supposing victory favours the right side, let us consider a
conqueror in a lawful war, and see what power he gets, and over whom.

First, It is plain he gets no power by his conquest over those that
conquered with him. They that fought on his side cannot suffer by the conquest,
but must at least be as much freemen as they were before. And most commonly
they serve upon terms, and on condition to share with their leader, and enjoy a
part of the spoil, and other advantages that attend the conquering sword; or at
least have a part of the subdued country bestowed upon them. And the conquering
people are not, I hope, to be slaves by conquest, and wear their laurels only
to shew they are sacrifices to their leaders triumph. They that found absolute
monarchy upon the title of the sword, make their heroes, who are the founders
of such monarchies, arrant Draw-can-sirs, and forget they had any officers and
soldiers that fought on their side in the battles they won, or assisted them in
the subduing, or shared in possessing, the countries they mastered. We are told
by some, that the English monarchy is founded in the Norman conquest, and that
our princes have thereby a title to absolute dominion: which if it were true,
(as by the history it appears otherwise) and that William had a right to make
war on this island; yet his dominion by conquest could reach no farther than to
the Saxons and Britons, that were then inhabitants of this country. The Normans
that came with him, and helped to conquer, and all descended from them, are
freemen, and no subjects by conquest; let that give what dominion it will. And
if 1, or any body else, shall claim freedom, as derived from them, it will be
very hard to prove the contrary: and it is plain, the law, that has made no
distinction between the one and the other, intends not there should be any
difference in their freedom or privileges.

Sec. 178. But supposing, which seldom happens, that the conquerors and
conquered never incorporate into one people, under the same laws and freedom;
let us see next what power a lawful conqueror has over the subdued: and that I
say is purely despotical. He has an absolute power over the lives of those who
by an unjust war have forfeited them; but not over the lives or fortunes of
those who engaged not in the war, nor over the possessions even of those who
were actually engaged in it.

Sec. 179. Secondly, I say then the conqueror gets no power but only over
those who have actually assisted, concurred, or consented to that unjust force
that is used against him: for the people having given to their governors no
power to do an unjust thing, such as is to make an unjust war, (for they never
had such a power in themselves) they ought not to be charged as guilty of the
violence and unjustice that is committed in an unjust war, any farther than
they actually abet it; no more than they are to be thought guilty of any
violence or oppression their governors should use upon the people themselves,
or any part of their fellow subjects, they having empowered them no more to the
one than to the other. Conquerors, it is true, seldom trouble themselves to
make the distinction, but they willingly permit the confusion of war to sweep
all together: but yet this alters not the right; for the conquerors power over
the lives of the conquered, being only because they have used force to do, or
maintain an injustice, he can have that power only over those who have
concurred in that force; all the rest are innocent; and he has no more title
over the people of that country, who have done him no injury, and so have made
no forfeiture of their lives, than he has over any other, who, without any
injuries or provocations, have lived upon fair terms with him.

Sec. 180. Thirdly, The power a conqueror gets over those he overcomes in a
just war, is perfectly despotical: he has an absolute power over the lives of
those, who, by putting themselves in a state of war, have forfeited them; but
he has not thereby a right and title to their possessions. This I doubt not,
but at first sight will seem a strange doctrine, it being so quite contrary to
the practice of the world; there being nothing more familiar in speaking of the
dominion of countries, than to say such an one conquered it; as if conquest,
without any more ado, conveyed a right of possession. But when we consider,
that the practice of the strong and powerful, how universal soever it may be,
is seldom the rule of right, however it be one part of the subjection of the
conquered, not to argue against the conditions cut out to them by the
conquering sword.

Sec. 181. Though in all war there be usually a complication of force and
damage, and the aggressor seldom fails to harm the estate, when he uses force
against the persons of those he makes war upon; yet it is the use of force only
that puts a man into the state of war: for whether by force he begins the
injury, or else having quietly, and by fraud, done the injury, he refuses to
make reparation, and by force maintains it, (which is the same thing, as at
first to have done it by force) it is the unjust use of force that makes the
war: for he that breaks open my house, and violently turns me out of doors; or
having peaceably got in, by force keeps me out, does in effect the same thing;
supposing we are in such a state, that we have no common judge on earth, whom I
may appeal to, and to whom we are both obliged to submit: for of such I am now
speaking. It is the unjust use of force then, that puts a man into the state of
war with another; and thereby he that is guilty of it makes a forfeiture of his
life: for quitting reason, which is the rule given between man and man, and
using force, the way of beasts, he becomes liable to be destroyed by him he
uses force against, as any savage ravenous beast, that is dangerous to his
being.

Sec. 182. But because the miscarriages of the father are no faults of the
children, and they may be rational and peaceable, notwithstanding the
brutishness and injustice of the father; the father, by his miscarriages and
violence, can forfeit but his own life, but involves not his children in his
guilt or destruction. His goods, which nature, that willeth the preservation of
all mankind as much as is possible, hath made to belong to the children to keep
them from perishing, do still continue to belong to his children: for supposing
them not to have joined in the war, either thro'infancy, absence, or choice,
they have done nothing to forfeit them: nor has the conqueror any right to take
them away, by the bare title of having subdued him that by force attempted his
destruction; though perhaps he may have some right to them, to repair the
damages he has sustained by the war, and the defence of his own right; which
how far it reaches to the possessions of the conquered, we shall see by and by.
So that he that by conquest has a right over a man's person to destroy him if
he pleases, has not thereby a right over his estate to possess and enjoy it:
for it is the brutal force the aggressor has used, that gives his adversary a
right to take away his life, and destroy him if he pleases, as a noxious
creature; but it is damage sustained that alone gives him title to another
man's goods: for though I may kill a thief that sets on me in the highway, yet
I may not (which seems less) take away his money, and let him go: this would be
robbery on my side. His force, and the state of war he put himself in, made him
forfeit his life, but gave me no title to his goods. The right then of conquest
extends only to the lives of those who joined in the war, not to their estates,
but only in order to make reparation for the damages received, and the charges
of the war, and that too with reservation of the right of the innocent wife and
children.

Sec. 183. Let the conqueror have as much justice on his side, as could be
supposed, he has no right to seize more than the vanquished could forfeit: his
life is at the victor's mercy; and his service and goods he may appropriate, to
make himself reparation; but he cannot take the goods of his wife and children;
they too had a title to the goods he enjoyed, and their shares in the estate he
possessed: for example, I in the state of nature (and all commonwealths are in
the state of nature one with another) have injured another man, and refusing to
give satisfaction, it comes to a state of war, wherein my defending by force
what I had gotten unjustly, makes me the aggressor. I am conquered: my life, it
is true, as forfeit, is at mercy, but not my wife's and children's. They made
not the war, nor assisted in it. I could not forfeit their lives; they were not
mine to forfeit. My wife had a share in my estate; that neither could I
forfeit. And my children also, being born of me, had a right to be maintained
out of my labour or substance. Here then is the case: the conqueror has a title
to reparation for damages received, and the children have a title to their
father's estate for their subsistence: for as to the wife's share, whether her
own labour, or compact, gave her a title to it, it is plain, her husband could
not forfeit what was her's. What must be done in the case? I answer; the
fundamental law of nature being, that all, as much as may be, should be
preserved, it follows, that if there be not enough fully to satisfy both, viz,
for the conqueror's losses, and children's maintenance, he that hath, and to
spare, must remit something of his full satisfaction, and give way to the
pressing and preferable title of those who are in danger to perish without it.

Sec. 184. But supposing the charge and damages of the war are to be made up
to the conqueror, to the utmost farthing; and that the children of the
vanquished, spoiled of all their father's goods, are to be left to starve and
perish; yet the satisfying of what shall, on this score, be due to the
conqueror, will scarce give him a title to any country he shall conquer: for
the damages of war can scarce amount to the value of any considerable tract of
land, in any part of the world, where all the land is possessed, and none lies
waste. And if I have not taken away the conqueror's land, which, being
vanquished, it is impossible I should; scarce any other spoil I have done him
can amount to the value of mine, supposing it equally cultivated, and of an
extent any way coming near what I had overrun of his. The destruction of a
year's product or two (for it seldom reaches four or five) is the utmost spoil
that usually can be done: for as to money, and such riches and treasure taken
away, these are none of nature's goods, they have but a fantastical imaginary
value: nature has put no such upon them: they are of no more account by her
standard, than the wampompeke of the Americans to an European prince, or the
silver money of Europe would have been formerly to an American. And five years
product is not worth the perpetual inheritance of land, where all is possessed,
and none remains waste, to be taken up by him that is disseized: which will be
easily granted, if one do but take away the imaginary value of money, the
disproportion being more than between five and five hundred; though, at the
same time, half a year's product is more worth than the inheritance, where
there being more land than the inhabitants possess and make use of, any one has
liberty to make use of the waste: but there conquerors take little care to
possess themselves of the lands of the vanquished, No damage therefore, that
men in the state of nature (as all princes and governments are in reference to
one another) suffer from one another, can give a conqueror power to dispossess
the posterity of the vanquished, and turn them out of that inheritance, which
ought to be the possession of them and their descendants to all generations.
The conqueror indeed will be apt to think himself master: and it is the very
condition of the subdued not to be able to dispute their right. But if that be
all, it gives no other title than what bare force gives to the stronger over
the weaker: and, by this reason, he that is strongest will have a right to
whatever he pleases to seize on.

Sec. 185. Over those then that joined with him in the war, and over those of
the subdued country that opposed him not, and the posterity even of those that
did, the conqueror, even in a just war, hath, by his conquest, no right of
dominion: they are free from any subjection to him, and if their former
government be dissolved, they are at liberty to begin and erect another to
themselves.

Sec. 186. The conqueror, it is true, usually, by the force he has over them,
compels them, with a sword at their breasts, to stoop to his conditions, and
submit to such a government as he pleases to afford them; but the enquiry is,
what right he has to do so? If it be said, they submit by their own consent,
then this allows their own consent to be necessary to give the conqueror a
title to rule over them. It remains only to be considered, whether promises
extorted by force, without right, can be thought consent, and how far they
bind. To which I shall say, they bind not at all; because whatsoever another
gets from me by force, I still retain the right of, and he is obliged presently
to restore. He that forces my horse from me, ought presently to restore him,
and I have still a right to retake him. By the same reason, he that forced a
promise from me, ought presently to restore it, i.e. quit me of the obligation
of it; or I may resume it myself, i.e. chuse whether I will perform it: for the
law of nature laying an obligation on me only by the rules she prescribes,
cannot oblige me by the violation of her rules: such is the extorting any thing
from me by force. Nor does it at all alter the case to say, I gave my promise,
no more than it excuses the force, and passes the right, when I put my hand in
my pocket, and deliver my purse myself to a thief, who demands it with a pistol
at my breast.

Sec. 187. From all which it follows, that the government of a conqueror,
imposed by force on the subdued, against whom he had no right of war, or who
joined not in the war against him, where he had right, has no obligation upon
them.

Sec. 188. But let us suppose, that all the men of that community, being all
members of the same body politic, may be taken to have joined in that unjust
war wherein they are subdued, and so their lives are at the mercy of the
conqueror.

Sec. 189. 1 say, this concerns not their children who are in their minority:
for since a father hath not, in himself, a power over the life or liberty of
his child, no act of his can possibly forfeit it. So that the children,
whatever may have happened to the fathers, are freemen, and the absolute power
of the conqueror reaches no farther than the persons of the men that were
subdued by him, and dies with them: and should he govern them as slaves,
subjected to his absolute arbitrary power, he has no such right of dominion
over their children. He can have no power over them but by their own consent,
whatever he may drive them to say or do; and he has no lawfull authority,
whilst force, and not choice, compels them to submission.

Sec. 190. Every man is born with a double right: first, a right of freedom
to his person, which no other man has a power over, but the free disposal of it
lies in himself. Secondly, a right, before any other man, to inherit with his
brethren his father's goods.

Sec. 191. By the first of these, a man is naturally free from subjection to
any government, tho' he be born in a place under its jurisdiction; but if he
disclaim the lawful government of the country he was born in, he must also quit
the right that belonged to him by the laws of it, and the possessions there
descending to him from his ancestors, if it were a government made by their
consent.

Sec. 192. By the second, the inhabitants of any country, who are descended,
and derive a title to their estates from those who are subdued, and had a
government forced upon them against their free consents, retain a right to the
possession of their ancestors, though they consent not freely to the
government, whose hard conditions were by force imposed on the possessors of
that country: for the first conqueror never having had a title to the land of
that country, the people who are the descendants of, or claim under those who
were forced to submit to the yoke of a government by constraint, have always a
right to shake it off, and free themselves from the usurpation or tyranny which
the sword hath brought in upon them, till their rulers put them under such a
frame of government as they willingly and of choice consent to. Who doubts but
the Grecian Christians, descendants of the ancient possessors of that country,
may justly cast off the Turkish yoke, which they have so long groaned under,
whenever they have an opportunity to do it? For no government can have a right
to obedience from a people who have not freely consented to it; which they can
never be supposed to do, till either they are put in a full state of liberty to
chuse their government and governors, or at least till they have such standing
laws, to which they have by themselves or their representatives given their
free consent, and also till they are allowed their due property, which is so to
be proprietors of what they have, that no body can take away any part of it
without their own consent, without which, men under any government are not in
the state of freemen, but are direct slaves under the force of war.

Sec. 193. But granting that the conqueror in a just war has a right to the
estates, as well as power over the persons, of the conquered; which, it is
plain, he hath not: nothing of absolute power will follow from hence, in the
continuance of the government; because the descendants of these being all
freemen, if he grants them estates and possessions to inhabit his country,
(without which it would be worth nothing) whatsoever he grants them, they have,
so far as it is granted, property in. The nature whereof is, that without a
man's own consent it cannot be taken from him,

Sec. 194. Their persons are free by a native right, and their properties, be
they more or less, are their own, and at their own dispose, and not at his; or
else it is no property. Supposing the conqueror gives to one man a thousand
acres, to him and his heirs for ever; to another he lets a thousand acres for
his life, under the rent of 501. or 5001. per arm. has not the one of these a
right to his thousand acres for ever, and the other, during his life, paying
the said rent? and hath not the tenant for life a property in all that he gets
over and above his rent, by his labour and industry during the said term,
supposing it be double the rent? Can any one say, the king, or conqueror, after
his grant, may by his power of conqueror take away all, or part of the land
from the heirs of one, or from the other during his life, he paying the rent?
or can he take away from either the goods or money they have got upon the said
land, at his pleasure? If he can, then all free and voluntary contracts cease,
and are void in the world; there needs nothing to dissolve them at any time,
but power enough: and all the grants and promises of men in power are but
mockery and collusion: for can there be any thing more ridiculous than to say,
I give you and your's this for ever, and that in the surest and most solemn way
of conveyance can be devised; and yet it is to be understood, that I have
right, if I please, to take it away from you again to morrow?

Sec. 195. 1 will not dispute now whether princes are exempt from the laws of
their country; but this I am sure, they owe subjection to the laws of God and
nature. No body, no power, can exempt them from the obligations of that eternal
law. Those are so great, and so strong, in the case of promises, that
omnipotency itself can be tied by them. Grants, promises, and oaths, are bonds
that hold the Almighty: whatever some flatterers say to princes of the world,
who all together, with all their people joined to them, are, in comparison of
the great God, but as a drop of the bucket, or a dust on the balance,
inconsiderable, nothing!

Sec. 196. The short of the case in conquest is this: the conqueror, if he
have a just cause, has a despotical right over the persons of all, that
actually aided, and concurred in the war against him, and a right to make up
his damage and cost out of their labour and estates, so he injure not the right
of any other. Over the rest of the people, if there were any that consented not
to the war, and over the children of the captives themselves, or the
possessions of either, he has no power; and so can have, by virtue of conquest,
no lawful title himself to dominion over them, or derive it to his posterity;
but is an aggressor, if he attempts upon their properties, and thereby puts
himself in a state of war against them, and has no better a right of
principality, he, nor any of his successors, than Hingar, or Hubba, the Danes,
had here in England; or Spartacus, had he conquered Italy, would have had;
which is to have their yoke cast off, as soon as God shall give those under
their subjection courage and opportunity to do it. Thus, notwithstanding
whatever title the kings of Assyria had over Judah, by the sword, God assisted
Hezekiah to throw off the dominion of that conquering empire. And the lord was
with Hezekiah, and he prospered; wherefore he went forth, and he rebelled
against the king of Assyria, and served him not, 2 Kings xviii. 7. Whence it is
plain, that shaking off a power, which force, and not right, hath set over any
one, though it hath the name of rebellion, yet is no offence before God, but is
that which he allows and countenances, though even promises and covenants, when
obtained by force, have intervened: for it is very probable, to any one that
reads the story of Ahaz and Hezekiah attentively, that the Assyrians subdued
Ahaz, and deposed him, and made Hezekiah king in his father's lifetime; and
that Hezekiah by agreement had done him homage, and paid him tribute all this
time.